Faustrum v. Board of Fire & Police Commissioner of Wauconda

608 N.E.2d 640, 240 Ill. App. 3d 947, 181 Ill. Dec. 567
CourtAppellate Court of Illinois
DecidedFebruary 5, 1993
Docket2-92-0495
StatusPublished
Cited by22 cases

This text of 608 N.E.2d 640 (Faustrum v. Board of Fire & Police Commissioner of Wauconda) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faustrum v. Board of Fire & Police Commissioner of Wauconda, 608 N.E.2d 640, 240 Ill. App. 3d 947, 181 Ill. Dec. 567 (Ill. Ct. App. 1993).

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

The plaintiff, Mark Faustrum, appeals the trial court’s dismissal, with prejudice, of his complaint against the defendants, Board of Fire and Police Commissioners of the Village of Wauconda, Illinois (the Board), and B.J. Goodyear, chief of police of the Village of Wauconda. The Board had terminated the plaintiff’s employment with the Wauconda police department. The plaintiff, who was a probationary officer, claimed that he was entitled to notice and a hearing prior to his discharge.

On May 24, 1990, while he was a student at the Police Training Institute (the Institute), the plaintiff allegedly engaged in misconduct involving the improper use of a firearm. On June 5, 1990, the director of the Institute heard testimony from the plaintiff and reviewed statements from witnesses to the alleged misconduct. The director found the plaintiff guilty of misconduct, and the plaintiff was removed from the training course. On June 8, 1990, the Board terminated the plaintiff’s employment for failing to complete the training course and for failing to meet “the expectations of the Village of Wauconda.” The Board itself never held a hearing but relied on reports from the director of the Institute and the defendant B.J. Goodyear, the Chief of the Wauconda police department.

On July 1, 1990, the plaintiff filed a three-count complaint in the circuit court alleging that he was entitled to a pretermination notice and hearing before the Board. According to the plaintiff, the Board violated his right to due process by denying him a pretermination notice and hearing. The plaintiff requested that the trial court review the administrative decision of the Board, declare that the plaintiff had a right to a pretermination notice and hearing and reverse the decision of the Board to discharge him from the police department.

The defendants moved to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). On February 4, 1991, the trial court dismissed all three counts of the plaintiff’s complaint, without prejudice. The trial court found that the plaintiff had failed to state a claim against the Board, but it directed that the plaintiff could refile its claim against the defendant Goodyear. The plaintiff appealed. We dismissed the plaintiff’s appeal on November 18, 1991, on the ground that the plaintiff had not appealed from a final, appealable order. (Faustrum v. Board of Fire & Police Commissioners of the Village of Wauconda (2d Dist. 1991), No. 2— 91 — 0252 (unpublished order under Supreme Court Rule 23).) On March 24, 1992, the trial court entered an order dismissing the plaintiff’s claim with prejudice. The plaintiff now appeals the March 24, 1992, order. We have jurisdiction to consider the plaintiff’s appeal, and we affirm.

Before it deprives an individual of liberty or property, a governmental agency such as the Board must provide that individual with the procedural due process guaranteed by the fourteenth amendment. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 569, 33 L. Ed. 2d 548, 556, 92 S. Ct. 2701, 2705; Daleanes v. Board of Education of Benjamin Elementary School District 25 (1983), 120 Ill. App. 3d 505, 517.) A person has a property interest in his job where he has a legitimate expectation of continued employment (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 107) based on a legitimate claim of entitlement. (Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709; Caauwe v. Police Pension Board (1991), 216 Ill. App. 3d 313, 318.) In order to show that he has a legitimate expectation of continued employment with the Wauconda police department which would entitle him to pretermination notice and a hearing before the Board, the plaintiff must point to a specific ordinance, State law, contract or understanding limiting the ability of the Board to discharge him. See Bishop v. Wood (1976), 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690, 96 S. Ct. 2074, 2077; Sullivan v. Board, of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167,171.

The Board has the authority to hire and fire Wauconda police officers pursuant to the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1991, ch. 24, par. 10 — 2.1—1 et seq.). Section 10 — 2.1—17 of the Code provides in relevant part:

“[N]o officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.” (Ill. Rev. Stat. 1991, ch. 24, par. 10-2.1-17.)

There is no dispute that section 10 — 2.1—17 provides police officers with property interests in their jobs. According to the Illinois Supreme Court, however, section 10 — 2.1—17 does not apply to probationary officers. Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422, 425.

The plaintiff admits that because he was a probationary officer, he derived no property rights from section 10 — 2.1—17. However, the plaintiff correctly points out that a municipality may provide greater protection to probationary officers than that provided by section 10— 2.1 — 17. For example, a municipal ordinance establishing procedural requirements for termination of probationary employees will create an entitlement. (Lewis v. Hayes (1987), 152 Ill. App. 3d 1020, 1024.) The plaintiff claims that the regulations of the Wauconda police department create such an entitlement. In particular, he identifies subparagraph (M) of the regulations regarding department discipline, which provides:

“Recourse of Aggrieved Sworn Members: Any Department member who feels aggrieved as a result of disciplinary action may apply, within twenty four (24) hours after notification of such action, for a hearing before the [Board].”

Subparagraph (L) identifies dismissal from the service as a possible disciplinary action. The plaintiff also points to subparagraphs (F) through (K), which delineate specific procedures for disciplining officers. The plaintiff argues that because these police department rules draw no distinction between probationary and nonprobationary department members, they provided him, as a probationary police officer, with the right to a hearing.

The trial court dismissed the plaintiff’s complaint based on the court’s conclusion that the police department regulations did not bind the Board. The trial court reasoned that because the police department and the Board are separate entities, and because the Board, not the police department, actually discharged the plaintiff, the Wauconda police department’s rules did not apply.

Prior to the hearing on the defendant’s motion to dismiss, the plaintiff had provided the trial court with portions of the rules and regulations of the Wauconda police department, including the portions cited above concerning department discipline.

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Bluebook (online)
608 N.E.2d 640, 240 Ill. App. 3d 947, 181 Ill. Dec. 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faustrum-v-board-of-fire-police-commissioner-of-wauconda-illappct-1993.